Kavanaugh, J., dissenting
will necessarily mean fewer services or increased taxes for other citizens and tribes in the State.
In addition, the Court’s newly created right–if applied across the board–would seem to afford Yakama tribal members an exemption from all manner of highway regulations, ranging from speed limits to truck restrictions to reckless driving laws. No doubt because of those negative real-world consequences, the Court simultaneously fashions a new health and safety exception.[1] But neither the right nor the exception comes from the text of the treaty. As The Chief Justice explains, the Court’s “need for the health and safety exception, of course, follows from the overly expansive interpretation of the treaty right adopted by the plurality and concurrence.” Ante, at 8.
I share The Chief Justice’s concern that the Court’s new right for tribal members to disregard even nondiscriminatory highway regulations and the Court’s new exception to that right for health and safety regulations could generate significant uncertainty and unnecessary litigation for States and tribes. The Chief Justice says it well: The Court “digs such a deep hole that the future promises a lot of backing and filling.” Ibid.
Instead of judicially creating a new atextual right for tribal members to disregard nondiscriminatory highway regulations and then backfilling by judicially creating a new atextual exception to that right for health and safety regulations, I would adhere to the text of the treaty and leave it to Congress, if it chooses, to provide additional benefits for the Yakamas. In my respectful view, even when we interpret any ambiguities in the treaty in favor of the Tribe, the treaty phrase “in common with” cannot properly be read to exempt tribal members from nondiscriminatory highway regulations.
- ↑ I understand both the plurality opinion and the concurrence to approve of a health and safety exception.
